Immigration Control and Immigration Law

Immigration Act 1971 S3(2)

The statutory power for immigration rules

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Immigration Act 1971 S33(5)

“this act shall not be taken to supersede or impair any power exercisable by her majesty in relation to aliens by virtue of her prerogative

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Vincenzi suggests

that the only non-contentious prerogative in relation to aliens is to imprison enemy aliens (that is nationals of those countries with whom the UK is at war).

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R (Munir) v SSHD [2012] Lord Brockway:

“the power to make immigration rules under the 1971 Act derives from the Act itself and is not an exercise of the prerogative”.

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R (Alvi) v SSHD [2012] on Prerogative Immigration Powers

“The secretary of state’s argument that she could control immigration in a way not covered by the immigration rules in the exercise of powers under the prerogative was rejected”

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Immigration Act 1971 S4(1)

power under this Act to give or refuse leave to enter the UK shall be exercised by immigration officers, and powers to give leave to remain or vary any leave by the Secretary of State

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Alexander v IAT (1982) on the Immigration Rules

“the rules are not to be construed with all the strictness applicable to the construction of a statute or statutory instrument. They must be construed sensibly according to the natural meaning of the language which is employed”.

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Odelola (HOL Case) and Pearson v IAT [1978]

the rules are not delegated legislation or rules of law but a guidance to those who administer the act.

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SSHD v Pankina [2010] Sedley LJ

whilst the rules are not subordinate legislation they are of a “status akin to that of law”.

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Kruse v Johnson [1898] - JR of the Rules, Irrationality - Rules can only be struck down if they are

“impartial or unequal in their operation, manifestly unjust, made in bad faith or involving such oppressive or gratuitous interference with the right of those subject to them as could find no justification in the mind of reasonable persons”

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S33 of the IA71

“entry clearance” means a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence or the requisite evidence of a person’s eligibility, though not a British citizen, for entry into the UK

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Nationality Immigration and Asylum Act 2002 S89

Removed the right of appeal for those without entry clearance who are turned away at port.

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Juxtaposed Controls

reciprocal arrangement whereby British immigration officers work at points abroad, and border guards of those countries work in ports in the UK, with each country carrying out immigration controls before crossing of the border

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The Sangatte Protocol to the treaty of Canterbury

agreed between France and the UK, establishing the principles and authorizations for Reciprocal Arrangements. Including the “Control Zones” which are the part of the host state in which the officers are empowered to effect their controls.

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The Sangatte Protocol to the treaty of Canterbury - Refugees

, the additional protocol with France provides that claims for refugee status must be made and processed in the state of departure. Thus imposing the responsibility for these claims on France, and the same applies to a claim for protection made on HR

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Section 32(5) of the Immigration and Asylum Act 1999

imposes liability for clandestine entrants arriving in the UK on the owner, captain, hirer or driver of the vehicle on which they arrived.

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Section 31(1) of the Immigration and Asylum Act 1999

The definition of clandestine is found in S31(1) and has two aspects: 1. Concealment 2. The person evades, or attempts to evade immigration control or claim or indicate they intend to claim asylum in the UK.

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Section 34 of the Immigration and Asylum Act 1999

a defence, in that they can avoid liability if they can prove they were under dures s, which was operated properly and they did not know, or had no reasonable grounds for suspecting that someone was concealed

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S4(1) of the 1971 Act

Act immigration officers have statutory powers to give or refuse leave to enter.

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IA71 Sch 2 Para 1(3)

An IO must act in accordance with the immigration rules and instructions given by the secretary of state

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IA71 Sch 2 Para 2

Any person arriving can be examined

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IA71 Sch 2 Para 2(1) and (4)

person arriving may be examined as to ascertain whether they need leave to enter and may be required to produce either a “valid passport with photograph or some other document satisfactorily establishing his identity and nationality or citizenship”

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Akewushola [2000]

AN expired passport with another proof of identity is not sufficient

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R (Thebo) [2013]

mandatory reasons for refusal is not an unlawful fetter on discretion according to administrative law because there exists a power to act outside the rules.

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Paragraph 320 Immigration Rules

List of Reasons for Refusal

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Para 320 (6) IR

Conducive to the Public Good: 320 (6) where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good;

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NM Zimbabwe [2007].

Entry clearance does not guarantee entry and it does not have retrospective effect

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IA71 Sch4

gives effect in the UK to immigration laws of the Isle of Man and Channel Islands (who are not subject to British Immigration Controls)

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Nationality, Immigration and Asylum Act 2002 S84

Sets out grounds of appeal

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Section 86 Nationality, Immigration and Asylum Act 2002

The Tribunal must allow appeals "in so far that it think that" one appeal ground occurred.

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Section 86 Nationality, Immigration and Asylum Act 2002 Effect on IO's

gives binding force to the immigration rules. IO’s HO Officials and ECOs are all bound to acct in accordance with the rules in the sense that if they do not their decision are appealable.

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East African Asians Case [1973]

Racial discrimination per immigration grounds is a breach of Article 3 HR.

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Effect of HRA 1998

Entry clearance officers, IOs and HO O’s are all public authorities for the purpose of the HRA 1998 and so are bound not to act in breach of a person’s convention rights.

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Beoku-Betts case (Hale at Para 4)

- “the right to respect for the family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor child, with whom that family life is enjoyed” – Baroness Hale at para 4

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S1, T1, U1 & V1 v SSHD [2012]

that to deprive of a dual national abroad of Britain did not engage articles 2 or 3

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Farrakhan [2002]

Exclusion on grounds of being conducive to the public good, did restrict expression of free speach but allowed since the reason for exclusion was justifiable under Art 10.2

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Immigration Control and Immigration Law

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